Jacob Walls' award-winning speech

Jacob Walls, a Forest Grove High School senior, won a state speech competition sponsored by the American Legion with his piece titled: "Free Speech as Defined by Metaphor:A Little Free and Fearless Reasoning." He plans to use the speech next month when he competes in the American Legion National High School Oratorical Contest in Indianapolis.

"Those who won our independence by revolution were not cowards. They did not fear political liberty," began Justice Louis Brandeis in his 1927 opinion in Whitney v. California. He continued, "To courageous, self-reliant men, with confidence in the power of free and fearless reasoning, no danger flowing from speech can be deemed clear and present unless it is so imminent that it may befall before there is opportunity for full discussion."

These words, along with those of Justice Holmes, formed the basis of the "clear and present danger" test that guided First Amendment jurisprudence throughout much of the twentieth century. Part of what Brandeis expressed with those words was very clear: free speech, the American form of free and fearless reasoning, is central to American democracy, and as citizens we have a duty to engage in the full discussion of our processes of government.

Other aspects are not so clear. Soon we are in murky waters trying to determine just how much something has to be prevalent to be present. Does clear mean obvious, or just simply discernable? These are questions Americans have been dealing with since the Bill of Rights was ratified 217 years ago, and it is mainly through metaphor that Americans have tried to define the breadth of the First Amendment, including: the efforts to define the limits on open dissent, to define what gets labeled obscene, and to protect public discussion. As Americans, it is important that we understand the First Amendment as understood by our courts today in order to live up to the duty of full discussion that Justice Brandeis set forth eighty years ago.

There is a common consensus that the government has the right to limit free speech based on its content if the content is deemed dangerous. This begs the question: to whom is it dangerous and why? The classic example of dangerous speech is someone yelling "Fire!" in a crowded theater. Thankfully, this occurs only infrequently, but other kinds of speech that are inherently dangerous have been outlawed: violent threats are illegal, and so is bribery, since money is, after all, speech. The law regarding this kind of speech (open dissent in the case of being addressed to a government) goes back to the early English notion of seditious libel.

Some people choose to defend the government against such speech by invoking what is called the "bad tendency" test. By accepting the principle that speech merely has to have a bad tendency to be illegal, we discount everything Holmes and Brandeis had to say about it having to be clear and present. The more restrictive bad tendency test was used to prosecute individuals airing protests against the country's entrance into World War I. One person distributing Communist leaflets may have the overthrow of the government in mind but certainly has no more capability of carrying it out than you or I. Although such speech is not clearly dangerous nor inflicting any immediate harm, the speaker would likely have been convicted under the World War I era Espionage Act. Is this reasonable? Not by modern standards, when the courts have refused to block the publication of the Pentagon Papers. Although the government had a valid argument that it might produce a bad tendency in the worsening of diplomatic relations, the courts saw no clear and present danger and allowed the publication to proceed. This freedom was harder to come by in the World War I era, however, when a film called The Spirit of '76 that depicted the brutality of British soldiers toward the colonists was thought to be defaming our closest ally. In the court case (with the ironic title of U.S. v. The Spirit of '76), the man who made the film received ten years in prison.

Such a case is clearly incongruous with today's standards â€“ who could object to the honest depiction of the behavior of the Redcoats in 1776? What immediately runs afoul of today's standards, however, are "fighting words," another metaphor in our effort to define free speech, but dealing this time with obscenity. The Supreme Court upheld the 1942 conviction of a Jehovah's Witness who, upon being asked by a city official to stop proselytizing in a public area, used an expletive to describe exactly what kind of racketeer and fascist this city marshal was, in his opinion. The state court argued that certain words are Constitutionally indefensible in that they would likely cause an average addressee to fight. In this age of national broadcast television, regulators must consider this idea that some words constitute an illegal act just by their utterance. To make the standards uniform, the FCC has developed a specific list of words they have decided to be unfit for air. These words are certainly not found in text of the Constitution! They are words that certain government regulators have deemed to be the worst of the worst â€“ patently offensive. But who exactly in the FCC drafted these rules? Are they words that offend all Americans or just a few in tall office buildings in Washington? This is an instance that once more proves the necessity of citizens fulfilling their duty to discuss the limitations of free speech and to engage in full discussion.

Chief Justice Warren Burger tried to clear up the matter of what constitutes obscenity by arguing that the key to the matter lies in whether the average person, applying contemporary community standards, would find something obscene. But whose community are we talking about? Community is becoming even harder to define: just consider the Internet. In fact, in the late eighties, the Supreme Court aimed to give more credence to other opinions of an alleged obscene work. The real question, it was proposed, was not whether an average person would find something obscene, but whether a reasonable person would. To prosecute someone under such a standard would entail giving credence to a critic or scholar who could testify to the literary, artistic, political, or scientific value of a work that might escape the average citizen â€“ all the more reason why as average citizens we need to be informed about the standards of free speech.

Additionally, such an understanding of the metaphorical limits on free speech can lead to self-censorship, something to be avoided in a nation that values open public discussion. The metaphor used in this case is a "chilling effect." Laws are reviewed to ensure that in their vagueness they do not produce a chilling effect on free speech. Newspapers and other media outlets form the basis of the community that would be concerned with the judicial limitations on free speech. (Just think, Black's Law Dictionary is a little too bulky for most of us to carry around in our pockets should any impromptu conversation arise on the street.) So it makes sense that the major court case involving the chilling-effect metaphor was New York Times v. Sullivan in 1964. An ad had been placed in that newspaper by civil rights leaders in Alabama looking to draw attention to the resistance to desegregation by Montgomery public officials. One such official pressed for libel damages and was awarded half a million dollars, but the Supreme Court overturned the ruling, finding instead that such damages would have a chilling effect on free speech. Newspapers would be less willing to report on public officials if it was possible that they could be sued for libel. It was noted in the majority opinion that erroneous statements will inevitably appear in print if the freedom of expression is to have its proper breathing space â€“ another metaphor. Two justices went further, insisting that only a complete, unequivocal immunity of the press to libel suits would prevent "deadly danger" to the idea of a free press.

We are all interested in preserving the protection of the free speech clause of the First Amendment. By creating metaphors to explain how free speech can be curtailed by vague legislation (through the chilling effect), how obscenity is defined (with fighting words), and to what extent open dissent is allowable (by proving a clear and present danger), the crucial, yet somewhat nebulous intent of the First Amendment can be preserved. This depends upon the determination of citizens to engage in the discourse, and, in fact, it depends upon a little bit of the courage and self-reliance that Justice Brandeis spoke of in his description of those who founded our country. They were not (and none of us should be) afraid of some free and fearless reasoning.